New York Real Estate Lawyer Blog

So, your next door neighbor wants to "legalize," install, or expand an airport in New York, what do you do? Hire a lawyer, participate in the process and call your legislators because any installation of an "airport" in New York requires legislative approval from the legislative body of the municipality. That approval, together with the "positive declaration" of the New York State Department of Transportation might just mean that you are dealing with an airport in your back yard.

Specifically, the Gen Bus. L, Section 249, states:

(3). Approval of privately-owned airports. No person shall hereafter establish a privately-owned airport or make an airport improvement to an existing privately-owned airport except by authorization of the governing body of the city, village or town in which such airport or any part thereof is proposed to be established or improved. The governing body of a city, village or town shall not authorize the establishment of such an airport or an airport improvement at a requested location unless in accordance with the standards prescribed by the commissioner of transportation. The local governing body of a city, village or town shall, prior to granting such authorization, request the commissioner of transportation to determine whether or not the establishment of such a privately-owned airport improvement complies with his standards.

GBL, Section 249 (Emphasis supplied).

When considering that issue, the Town Board must look to its Comprehensive Master Plan to consider whether that use is appropriate for that particular location. After positive declarations are issued by the Town Board and the Aviation Department of the New York State Department of Transporation, the applicant must then go through site plan review, and all other land use boards.

Bottom line-- vigilence is mandatory.

My elderly client calls me up and says, "I can't get a copy of my birth certificate, so I can't get a passport, so I can't . . . . . "

"That's a new one on me," I say. It turns out that this client had been using "mary smith" for more than 70 years, but that her true name "june mary smith" (names changed to protect the innocent) appeared on her birth certificate. She had no legal papers to show that she had ever used the name "June" anywhere, even her Social Security card contained the name "Mary Smith." Two marriages later, she wants a passport to visit her daughter, but the New York City Clerk won't give her a certified copy of her New York State birth certificate because she can't prove who she really is. Frustrating? Not for this spry client, but a pain in the neck because now she has to Petition the New York State Supreme Court to legally "change her name."

That makes no sense, but it's true and it's happening to many people in this post- 9/11 era. We prepared a Petition for a Name Change under New York's Civil Rights Law, Sections 60 through 65, and sent her to the court house to "walk it through."

I hate charging people for these types of matters, but I think my office added "value" to the printed form, gave her a good deal, and will resolve the issue. I had half a mind to sue the Clerk's office, but what would that gain?

Bottom Line-- New York State earned $305, I earned a new client, and we are all protected now that grandma confirmed her original identity. Sometimes, it gets bizarre.

The NYTimes reported that a legendary sports figure being investigated as part of an ever widening criminal investigation transferred his house just four (4) months prior to the scandal hitting the national press. Forbes.com wrote an interesting article that discusses the reasons for such a transfer.

As reported in the article, the question of whether a real estate transfer is fraudulent or designed to divest creditors of assets will be a fact intensive review. In this case, the elderly embattled figure may have transferred the home to effect an estate plan, may have just learned that he is ill, or could have done it to avoid personal liabilty for the alleged coverup.

In New York, the creditors will have a long battle ahead. They need to prove a case, win a judgment, and then chase after the debtor.

Every day parties hire lawyers to "resolve" a dispute, to "negotiate" a transaction, to "settle" a matter that has arisen between two entities or individuals. The attorney often jumps into the fray (swords raised), has discussions with the other lawyer, and, sometimes, those communications get garbled leaving the process damaged, the parties angry, and the matter not resolved. "Garbled" is the polite term, but a less idealistic view might suggest that the negotiations got garbled by the fact that lawyers have their own interests of professional reputation, or purse strings, or other undisclosed reasons for muddying the water. Personally, I don't respect attorneys who practice that way, but they will all have excuses as to why the communication was presented in the way it was. So, what am I to do, I cannot contact a party represented by another lawyer?

Can I have my client contact the other client directly, and can I tell them what to say?

Truthfully, I have counseled my clients to contact the other side directly, without the filter of an attorney; but I have often been concerned that such advice, while practical, might not be ethical or responsible under our code of professional ethics. In my gut, I always thought it proper, but I had a nagging sense that other attorneys might disagree. I thank my bretheran at the NYSBar Association who have now set forth an ethics opinion sanctioning such conduct by issuing an opinion about when and how a New York attorney might advise their client to contact the other side directly.

Bottom line-- Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.

As we all know, second hand smoke is never a pleasant experience; tight living quarters make it even worse.

Most people in apartment complexes come in with the notion that there will be some unpleasant smells associated with living with other people, and are not bothered by smoke so long as it is contained. However, sometimes that is just not possible with smoke. If this is the case, it is reasonable that a tenant would become annoyed. But what does what is a tenant to do? They can call the landlord, ask the smokers to stop, plug up any holes, etc, but what happens when they find that their efforts were in vain?

The good news is that there is something you can do. After you let your landlord know that there is a serious second hand smoke issue, preferably in writing, tenant may bring suit against their landlords on the grounds of implied warranty of habitability. Under this theory, courts have looked to the facts and circumstances of the situation to determine whether the second hand smoke is so pervasive as to continue constructive conviction, i.e. your living situation was so badly that you were not kicked out by your landlord but you might as well have been. See Poyck v. Bryant, 31 Misc.3d 699 (N.Y County Civil Ct. 2006).

Real Property Law § 235-b imposes a warranty of habitability in every landlord-tenant relationship where the landlord impliedly warrants:

“First, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties, and third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health, or safety.”

See Id. at 701; Park W. Mft. Corp., 47 N.Y.2d 316 (1979). In other words, landlords are held to a high level of care by the courts to ensure that tenants are living comfortably. In order to determine whether there has been a breach of this duty, courts will measure the issue “’in the eyes of a reasonable person’ [and] not in a vacuum which ignores the ‘essence of the modern dwelling unit.’” Poyck, at 701.

Put more simply, if you have someone who is above you smoking up a storm, and it is ivading your apartment where your sick mother lives with you and cannot breath smoke in, courts may find in your favor and find this to be a breach of warranty of habitability, and therefore constitute constructive eviction. However, if you have someone down the hall who smokes a couple of cigarettes a week, but not consistently, and sometimes it smells, courts are not going to find this to be a breach of the implied warranty of habitability.

The Bottom line is that this is a very fact-based analysis and the tenant really needs to show that the condition is detrimental to their life, health, or safety on a consistent basis.

Section 503 of the United States Copyright Act provides for statutory damages of up to $150,000 per infringment for willful copying. The statute also provides for attorneys' fees, costs and lost profits and damages. The Copyright Act applies to all types of creative works, including this one (and all other blog posts).

So you are sitting on your sofa thinking about life and all you have achieved and just like that it hits you—I have some assets that I would like to distribute to my family if something happens to me. The next thought that will likely cross your mind is: I should probably set up a will.

While the most effective way to distribute your assets exactly as you would wish is to get a will written up by an attorney; Courts in New York State have probated Holographic Wills--a will that was handwritten by the decedent.

In New York, precedent suggests that for a will to qualify for probate (to be valid), it must have been: (1) published by the decedent; (2) in presence of two witnesses. See In Re Pulvermacher’s Will, 305 N.Y.378 (1953). "Publication" means that the Testator has knowledge of testamentary character of instrument, and shares such knowledge with witnesses. Put simply, there needs to be a meeting of the minds between the testator (the person writing the will), and the attesting witnesses (the person who has agreed to witness the will), that the instrument (the ratty old napkin that you have decided to make your will on) they are being asked to sign as witnesses is testamenatory in character (basically that they knew they were signing a will). Estates Powers and Truste Law, Section 3-2.1(a)(3); see also In Re Estate of Pilon, 9 A.D.3d 771 (App. Div. 3d Dep’t 2004). And that is it!

Now, who does this type of will work for? This works best for someone who: 1) has very little assets so they are easily distributed; 2) someone who has assets but plans to will everything to one person. Otherwise things could get sticky!

Bottom line—if you have a good amount of assets, you will want to contact an attorney and get a will drawn up to ensure that they are distributed to your liking. If you have one person in your life and that is the person wish to give your assets to you may make your own will so long as the steps are clearly taken!

Perhaps it was inevitable that after 98 years, the middle class homeowner in New York (and elsewhere) should have to shoulder more burdensome tax liabilities through the loss of the Home Mortgage Interest Deduction. According to early reports, Congress and the President are about to wage war over removing deductions for interest on mortgage payments.

See one article here.

Bottom Line-- the Federal Government needs more money, and the little guy, mortgaged to the hilt is gonna pay.

As life becomes complicated, you become incapacitated, you are living alone, or if you just want to be prepared for emergencies; it is very important to organize your important papers so that loved ones can pick up the pieces in a moment's notice. When I speak to a client who wants to prepare a will, I often tell that client to gather all of your important papers and information into one place so that another person might know how to find such information for you.

But, what is that "important paper" that should be gathered up and stored in an easy to access location?

Here's a partial list of items you can use to get "organized."

Personal Records

ˉFull legal name

ˉSocial Security number

ˉLegal residence

ˉDate and place of birth

ˉNames and addresses of spouse and children

ˉLocation of birth and death certificates and
certificates of marriage, divorce, citizenship, and adoption

ˉEmployers and dates of employment

ˉEducation and military records

ˉNames and phone numbers of religious contacts

ˉMemberships in groups and awards received

ˉNames and phone numbers of close friends, relatives, and lawyer or financial advisor

ˉNames and phone numbers of doctors

ˉMedications taken regularly

ˉLocation of Living Will

Financial Records

ˉSources of income and assets (retirement funds, IRAs, 401(k)s, interest, etc.) ˉSocial Security and Medicare information

ˉInsurance information (life, health, long-term care, home, car) with policy numbers and
agents’ names and phone numbers

ˉNames of your banks and account numbers (checking, savings, credit union)

ˉInvestment income (stocks, bonds, property) and stockbrokers’ names and phone numbers

ˉCopy of most recent income tax return(s)

ˉLocation of most up-to-date will with an original signature

ˉLiabilities, including property tax– what is owed, to whom, when payments are due

ˉMortgages and debts– how and when paid

ˉLocation of original deed of trust for home and car title and registration

ˉCredit and debit card names and numbers

ˉLocation of safe deposit box and key

Bottom Linie-- In the event you should die or have some catestrophic emergency, these simple organizational items will start those loved ones moving in your best interest.

So, you signed the retainer with an attorney, litigated a case or resolved the matter, but now have a fee dispute with your lawyer over fees, malpractice, or something else. You are considering a lawsuit against that attorney, or that attorney may have sued you to recover her fees. You look at your retainer agreement and see that in contains a provision requiring arbitration under Part 137 (22 NYCRR 137 et seq.). What is that, and if you win, does your attorney get the right to re-litigate the finding of the fee arbitrators.

The answer to whether an attorney may litigate the arbitration finding and request a new trial ("de novo") in the courts is a complex issue that has actually been litigated by attorneys seeking to avoid the findings of the fee arbitrators. Try to follow the chain of thought:

First, either party may reject a Part 137 arbitration award and sue for a de novo trial.

22 NYCRR 137.8. De novo review.

(a) A party aggrieved by the arbitration award may commence an action on the merits of the fee dispute in a court of competent jurisdiction within 30 days after the arbitration award has been mailed.

However, the parties can waive their right to a trial de novo in advance “in a form prescribed by the Board of Governors.” (emphasis added)

22 NYCRR 137.2. General.

(c) The attorney and client may consent in advance to arbitration pursuant to this Part that is final and binding upon the parties and not subject to de novo review. Such consent shall be in writing in a form prescribed by the Board of Governors.

But what did the Board of Governors intend for the word “form” to mean? A “written waiver form”, or a “style” or “manner”? The answer seems to appear in supplementary directives promulgated by the Board, as follows:

The Board of Governors is mandated to write “guidelines and standards”, essentially supplementary directives that provide further guidance as to the Part 137 rules.

22 NYCRR 137.3. Board of governors.

(g) The board of governors * * * shall adopt such guidelines and standards as may be necessary and appropriate for the operation of programs under this Part, […]

(emphasis added)

The introductory paragraph of the “Standards and Guidelines”, confirms that these are indeed the guidelines and standards mandated by 22 NYCRR 137.3(g) (quoted above).

STANDARDS AND GUIDELINES

Pursuant to Part 137 of the Rules of the Chief Administrator, Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York, the following Standards and Guidelines are promulgated by the Board of Governors of the New York State Attorney-Client Fee Dispute Resolution Program ("Board") to implement the Attorney-Client Fee Dispute Resolution Program and Part 137.

The Board of Governors, however, interpret 137.2(c)’s use of the word “form” to mean that an explicit waiver of de novo review is required only if the waiver is to bind the client.

STANDARDS AND GUIDELINES
SECTION 6 THE FEE DISPUTE RESOLUTION PROCESS

B. Prior Written Agreements Between the Attorney and Client Under Section 137.2.

2. Under section 137.2(c), the attorney and client may consent in advance to submit to arbitration that is final and binding and not subject to a trial de novo. To be valid on the part of the client, such consent must be knowing and informed and obtained in the manner set forth in section 6(B)(1) of these Standards and Guidelines, except that the retainer agreement or other writing shall also state that the client understands that he or she is waiving the right to reject an arbitration award and subsequently commence a trial de novo in court.

There is no corresponding required wording for an attorney to explicitly waive his right to a de novo trial. The clear meaning of Standards and Guidelines 6.B.2. is that no client can be bound by an inadvertent and unknowing agreement to waive his rights to a new trial of the issue. From 6.B.2.’s silence with respect to attorneys, it seems fair to assume that they are expected to know the law and therefore are not similarly protected.

However, despite this seemingly clear chain of law, at least two Courts have ignored the wording of Standards and Guidelines 6.B.2. Instead, the Courts have ruled that 22 NYCRR 137.2(c)’s use of the word “form” refers to “written waiver form” Model Form UCS 137-14 (11/01), entitled: “Consent To Submit Fee Dispute To Arbitration Pursuant To Part 137.2(c) Of The Rules Of The Chief Administrator And To Waive Right To Trial De Novo”.

Further,in one case, the Court unilaterally expanded the protection against unknowing waiver explicitly given only to the client in 6.B.2. and decided that this protection also covered the attorney, permitting him to avoid the otherwise clear language he drafted for inclusion in his retainer agreement stating that the arbitration “will be binding” on both the client and the law firm.

A de novo review, however, may not be what the attorney seeking to avoid the arbitration award wants. Recall, the client may have had a concern about legal malpractice, breach of fiduciary duty or other claims under Judiciary Law Section 487. Is it really in the attorney's best interest to avoid the arbitration award and seek de novo review?

Bottom line-- under the existing loop hole, several courts have allowed attorneys who promised binding arbitration to avoid the binding arbitration promised.

The plaintiff in McColgan v. Brewer owned a part of what was a larger parcel of property owned by M. Kelley. During construction of the New York State Thruway, the state of New York acquired the middle part of the original Kelley parcel.

As a result, Kelley owned two separate parcels, one west of the Thruway and the other east of the Thruway. The physical layout required Kelley, and now the plaintiff, to use Albert's Lane to reach Route 32. Kelley's southern neighbors entered into a series of right-of-way agreements with the owners of the northern parcels to secure access to Route 21 via Alberts Lane in 1953. Kelley was never a party to these right-of-way agreements granting an easement between her property and Route 32.

The plaintiff purchased the Kelley parcels. Prior to purchasing the subject property, the plaintiff (1) hired the defendants Rothe Engineering & Construction and Donald Brewer to conduct a survey of the subject property, (2) hired the Attorney defendant Philip Kirschner to determine if the easterly portion of the property had access to Route 32 via Alberts Lane, and (3) obtained insurance from the defendant Chicago Title Insurance Company through a local agent, Abbacy Abstract, to insure against any losses that he would incur if the landlocked portion of the property did not have access to Route 21.

The plaintiff then amended the zoning of the subject property to develop and use it as a pipe yard. Thereafter, he was informed that the right-of-way agreement over Albert's Lane did not benefit the landlocked portion of the property. The plaintiff then filed a claim under his insurance policy, which Chicago Title Insurance rejected.

Here, the plaintiff has filed claims (1) against Rothe Engineering & Construction and Donald Brewer for negligence and breach of contract, (2) against Kirschner for legal malpractice, and (3) against Chicago Title for fraud and breach of contract.

At the trial level, (1) Chicago Title moved for summary judgment arguing Kelley's southern neighbor's right-of-way agreement benefited the Kelley parcels, (2) the plaintiff moved for partial summary judgment to hold that his landlocked property was not benefited by the right-of-way agreement, and (3) Kirschner moved to preclude certain expert testimony in the plaintiff's expert disclosure, and the plaintiff cross-moved for costs and sanctions based on filing a frivolous motion.

The trial court denied Chicago Title's motion for summary judgment, granted the plaintiff's cross motion for partial summary judgment, and denied the cross motions relating to the expert disclosure. Kirschner appealed on the grounds that the right-of-way agreement established a benefit to the plaintiff's property.

The court, ruled that Kelley's neighbors were the only grantees of the agreement stating, "As neither Kelley nor her successors in interest were grantees with respect to the right-of-way agreements with the other landowners, such agreements do not benefit the landlocked portion of plaintiff's property as a matter of law."

Regarding the Attorney Kirschner's motion on precluding expert testimony, the court held that Kirschner failed to demonstrate the plaintiff's actions were willful or that he was prejudiced as a result.

Bottom Line-- the case is going to trial against the attorney and the title company.

In today's real estate market of short sales, mortgages underwater, depressed prices and a buyer's market, where financing can be a tricky and arduous journey there is one contingency that may protect the buyer-- the appraisal contingency, often negotiated by attorneys for real estate buyers.

Stated simply, the appraisal contingency is designed to give a buyer the right to cancel the contract if the home does not appraise for the price the buyer agreed to pay. Take the case of a Florida couple who contracted to buy a house from for $620,000. The purchase and sale contract provided that the sale was "contingent upon this property appraising for no less than $620,000." The purchasers commissioned an appraisal which apparently came in at $560,000, and refused to close.

In response, the Sellers secured an appraisal which valued the real estate at $635,000. The sellers sued for breach of contract, arguing that any appraisal of $620,000 or more obligated the purchasers to buy the house. The purchasers argued that since it appraised for less (by their appraiser) they could terminate. The Florida appellate court favored the buyers, ruling: "In our view, 'appraising for no less than $620,000' means that no appraisal may be less than $620,000," the court ruled.

The Bottom Line-- contingencies should be written in full sentences. For example, this is a common contingency in a New York Residential Real Estate purchase:

Purchaser's obligations hereunder are contingent upon the appraisal of the premises conducted on the behalf of the Purchaser, being in an amount equal to or greater than the purchase price set forth herein. In the event the appraised value is lower than the said purchase price, purchaser shall have the option of canceling this contract on written notice to seller’s attorney.